S 45(2) RPA
Despite any other provision of this Act, proceedings for the recovery of damages, or for the possession or recovery of land, do not lie against a purchaser or mortgagee bona fide for valuable consideration of land under the provisions of this Act merely because the vendor or mortgagor of the land
- may have been registered as proprietor through fraud or error, or by means of a void or voidable instrument, or
- may have procured the registration of the relevant transfer or mortgage to the purchaser or mortgagee through fraud or error, or by means of a void or voidable instrument, or
- may have derived his or her right to registration as proprietor from or through a person who has been registered as proprietor through fraud or error, or by means of a void or voidable instrument
- Brian stole the certificate of title from Chris. He forged a transfer to Toby, inserting Chris’ name into the transfer. Toby becomes the new registered proprietor. Toby did not know anything about this? Can Chris recover the property?
- We now understand from Frazer v Walker and Breskvar v Wall that Chris cannot recover the land
- What can he do?
- He can bring an action against Brian for fraud and most likely will get damages
Section 42
States that the title received at registration is indefeasible
Mayer v Cole (1968) 88 WN (NSW) (Pt 1) 549
Mayer (sellor) had her solicitor act dishonestly selling house to Mr Coe, who believed he was buying property off Mayer – solicitor missappropriated the money and used for own purposes. Mayer only became aware of this after Mr Cole had registered title to the property.
The court held that Cole had an immediate indefeasibility upon registration, even though he had obtained registration by lodging a forged mortgage – it did not matter that the document was forged, Mr Cole still had acquired the quality of “indefeasibility”
- An agreement to grant a mortgage – this is another example of an unregisterable equitable mortgage – the lender only has an equitable right over the land
- 41 and 42 of RPA gives priority to the holder of a registered interest over the holder of an unregistered interest unless the unregistered can rely upon an exception to indefeasibility
Both ss. 42 and 43 of RpA recognise fraud as an exception to indefeasibility. The cases state that notice of itself does not equal fraud: Wicks v bennett(1921) 30 CLR 80
In order to establish fraud there must have been ‘some personal dishonest’ or ‘some moral turpitude’: Stuart v Kingston (1929) 33 CLR 309
